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Although they were in agreement in one of the more controversial and discussed opinions of the U.S. Supreme Court’s recently concluded term, the 5th U.S. Circuit Court of Appeals still struck out on more than half of its opinions reviewed by the high court. Long considered one of the more conservative circuits in the nation, the 5th Circuit found common ground with the Supreme Court on a religious freedom case — one of the hottest issues the high court decided this term. But some appellate observers sense an anti-employee and pro-law enforcement bent on the circuit caused the high court to rein it in on those issues. The Supreme Court followed the 5th Circuit’s lead in Santa Fe Independent School District v. Doe. A 6-3 high court agreed with the 5th Circuit that prayers before Texas public school football games had an impermissible stamp of government endorsement. Of the nine 5th Circuit cases the high court reviewed, six were either reversed or remanded. Three were affirmed. That’s not a bad year for the circuit in the eyes of some appellate experts. “Not good enough to make the playoffs, but better than most other circuits,” says David Schenck, an appellate lawyer and partner in Dallas’ Hughes & Luce. Circuit courts on average are reversed about 80 percent of the time, he says. Schenck considers Santa Fe a “hands-down winner for the 5th Circuit.” Reversals of 5th Circuit opinions occurred in cases that were more procedural in nature, he says. Employment lawyers count the Supreme Court’s decision in Reeves v. Sanderson Plumbing Products Inc. as one of the most important 5th Circuit cases addressed by the high court. In that case, the 5th Circuit found that a 57-year-old plaintiff did not present sufficient evidence that he was fired from his job because of age discrimination, even though a jury had returned a verdict in his favor. But the high court found that the circuit had improperly made a judgment as a matter of law. “The court disregarded evidence favorable to [plaintiff] Reeves — the evidence supporting his prima facie case and undermining respondent’s nondiscriminatory explanation — and failed to draw all reasonable inferences in his favor,” wrote Justice Sandra Day O’Connor in a unanimous opinion. Plaintiffs’ attorneys consider Reeves a significant victory and a repudiation of the way the 5th Circuit traditionally deals with employment cases. “It’s a fairly strong rejection of the 5th Circuit’s approach to employment cases under Title VII,” says Scott Newar, a Houston sole practitioner whose practice focuses on civil rights. “And hopefully it’s going to allow employees in these cases to get to the jury and maintain that once they get there.” But the Supreme Court’s decision in Reeves did not surprise a veteran employment lawyer familiar with the 5th Circuit’s work. “The Supreme Court told Texas employer lawyers in that case, ‘The party’s over,’” says Michael Maslanka, a partner in Dallas’ Clark, West Keller, Butler & Ellis. “A judgment as a matter of law should appear about as often as a lunar eclipse.” CIVIL DISAGREEMENT Another of the high court’s more obscure but important decisions came in Sims v. Apfel — a Social Security claims case decided by a 5-4 vote. In Sims, a claimant was denied Supplemental Security Income benefits by the Social Security Administration. She appealed. The 5th Circuit affirmed the denial of benefits and concluded it did not have jurisdiction over two of the claimant’s allegations because they were not included in her request for review before the agency. That was the wrong answer, according to the Supreme Court. “We conclude that a judicially created issue-exhaustion requirement is inappropriate,” wrote Justice Clarence Thomas in reversing the 5th Circuit in Sims. Justice Stephen Breyer dissented, saying that “the Social Security Administration says that it does not apply its waiver rule where the claimant is not represented … and I cannot say it is ‘arbitrary, capricious, [or] an abuse of discretion.’” While Social Security law is not a burning issue for the 5th Circuit, the Supreme Court used the case to correct a problem it saw in the process, plaintiffs’ lawyers say. “I think it’s an important decision for people who are trying to get SSI. The main reason is because they saw that a lot of people are not being represented in the administrative hearing process,” says Beth Sufian, a partner in Houston’s Sufian & Passamano who specializes in Social Security and health insurance issues. “It’s very important for the Supreme Court to say, ‘We are not going to foreclose on some issues after the ALJ makes a decision,” Sufian says. But the 5th Circuit got it right when interpreting the Fair Labor Standards Act and how it should be applied to compensation time due to employees in Christensen, et al. v. Harris County. In that case, 127 deputy sheriffs sued Harris County after objecting to a government plan to reduce overtime pay by forcing the workers to take comp time. The 5th Circuit found that the FLSA did not prohibit an employer from scheduling time off for a worker with full pay. The high court agreed by a 6-3 vote. CRIMINAL LAW While many criminal lawyers watched with anticipation as the Supreme Court considered and eventually left the seminal Miranda decision intact, an equally broad criminal law decision came in its 7-2 reversal of Bond v. U.S., a 5th Circuit case that allowed police to use an unusual tactic when searching for evidence. Bond dealt with Fourth Amendment search and seizure issues — a subject 5th Circuit justices have struggled with often. In Bond, a U.S. Border Patrol agent allegedly found drugs in a traveler’s soft luggage by squeezing the bag while checking a bus at a border patrol checkpoint near the Texas-Mexico border. The luggage contained a “brick” of methamphetamine and the passenger who owned the bag was arrested. The defendant challenged his conviction arguing that the evidence taken from him was seized illegally. But the 5th Circuit held that the agent’s manipulation of the bag was not a search under the Fourth Amendment. The Supreme Court reversed, ruling that the agent’s actions violated the Fourth Amendment’s proscription against unreasonable searches. “In some respects [Bond is] more important … even if they had reversed Miranda,” says Stanley Schnieder, a Houston criminal-defense lawyer. “In Fourth Amendment issues, the courts have been stepping back and giving greater and greater latitude in stop and search issues. And so by this ruling they want to bring back the issue to say, ‘Wait a second. There are some limits to what the police can do.’” The other criminal law case of note was Castillo v. U.S., which warranted national attention because it involved criminal defendants in the government’s raid on the Branch Davidian compound in Waco, Texas. In that case, a jury had determined that the defendants violated federal statutes that provide for 30-year sentences if a machine gun is used in an offense. The 5th Circuit affirmed their sentences, concluding that statutory words such as “machine gun” create sentencing factors, not elements of a separate crime. A unanimous Supreme Court reversed the case, partly because it believed a machine gun offense weighed more toward being a separate crime. “The courts are getting increasingly suspicious of the sentencing guidelines,” says Clay Conrad, a Houston criminal-defense lawyer. “It shows the [Supreme] Court is going to start looking at those things very closely.” 5TH CIRCUIT SCORECARD The following list indicates how the nine 5th Circuit cases fared at the U.S. Supreme Court last term. Case — Issue — Date — Split — Outcome Texas, et al. v. Lesage, et al. — civil rights — 11/29/99 — per curiam — remanded Free, et al. v. Abbott Laboratories Inc., et al. — class action — 4/3/00 — per curiam — affirmed Bond v. United States — constitutional law — 4/17/00 — 7-2 — reversed Christensen, et al. v. Harris County — employment law — 5/1/00 — 6-3 — affirmed Sims v. Apfel — social services law — 6/5/00 — 5-4 Castillo v. United States — criminal law — 6/5/00 — 9-0 Reeves v. Sanderson Plumbing Products Inc. — civil rights — 6/12/00 — 9-0 — reversed Santa Fe Independent School District v. Doe — constitutional law — 6/19/00 — 6-3 — affirmed Mitchell v. Helms — constitutional law — 6/28/00 — 6-3 — reversed Source: 5th Circuit and U.S. Supreme Court

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